1st Amendment
Congress shall make no law respecting…1. an establishment of religion, or 2. prohibiting the free exercise thereof; or
3. abridging the freedom of speech, or 4. of the press; or 5. the right of the people peaceably to
assemble, and 6. to petition the Government for a redress of
grievances.
Preferred Position
• SCOTUS-established guideline for future cases
• 1st am freedoms are fundamental human rights & have prerogative• If there is a dilemma between
citizens’ rights, 1st am rts superior
Freedom of Religion
• Establishment Clause• Congress shall make no law respecting
an establishment of religion…
• Prohibits establishing official religion
• Prohibits governmental preference of one religion over any other
Freedom of Religion
• History of Establishment Clause• Jefferson: “Wall of separation
between church and state”
• Madison: “perfect separation between the ecclesiastical and civil matters”
Freedom of Religion
• Free Exercise Clause• …or prohibiting the free exercise thereof…
• Prohibits government restrictions on religious activity
Establishment cases
• Virtually all cases have been in last 75 years
• Several topics:• Public funding
• Religion in public schools
• Public displays
Public funding
• 1899 – Feds can give $ support to Catholic hospital• Legit secular purpose
• 1947 – State govs can fund busing for private school kids• Close decision – because of “entangling
relationship”• But public safety – legit secular purpose
Public funding
• 1971 – Lemon v. Kurtzman• States can’t fund teacher salaries or
educational programs at religious schools
• Lemon Test• Tax $ must have legit secular purpose• Can’t advance or inhibit any religion• Can’t create excessive entanglement
Public funding
• School vouchers• 1973 – states can’t give parents $ to
attend private schools
• 2002 – states can give vouchers if it’s religiously neutral
Later public school cases
• 1963 – No mandatory bible readings
• 1980 – Can’t have mandatory 10 commandments in classrooms
• 1985 – Can’t have official silent prayer
• 1992 – Can’t have intercom prayer at other school events
Other public school cases
• 1952 – Off-campus religious classes are allowed if there is no public funding
• Equal Access Act (1984)• Public HS must give equal facility access
to clubs meeting outside school hours
Public religious displays
• Religious displays on gov property are allowed if part of larger secular display
• 1984/1989 – “Plastic reindeer” rule• Religious displays not ok if overtly
promoting a religion, ok if part of larger secular display
• 2005 – 10 Commandment plaque ok if pt of larger secular “lawgiving” display
Free Exercise Clause
• 1878 – Reynolds v. US• Mormon wanted to polygamize in violation
of federal law• 100% freedom of belief, not of action• Free Exercise not an acceptable defense
against legitimate criminal laws
• 1990 – Laws banning drug use are OK if they don’t target religious groups
Free Exercise Clause
• Several cases involving Jehovah’s Witnesses & Amish• Can’t restrict handing out pamphlets• Can’t force kids to pledge allegiance
against religious beliefs• Amish kids can quit school at a young age
Freedom of Speech
• “Congress shall make no law…abridging the freedom of speech”
• “Speech” includes many forms of communication other than pure speech
• Includes symbolic speech as well as silence
Freedom of Speech Exceptions
• Clear and present danger• 1919 – Schenck v. US
• If speech creates a dangerous situation it can be restricted
• “Shouting fire in a crowded theatre”
• But gov must be careful – can’t ban speech if it’s just unpopular
Freedom of Speech Exceptions
• Fighting words/hate speech• Few restrictions unless they create
immediate dangerous situation• Not illegal if they advocate violence
• Commercial speech• Some restrictions are allowed
Freedom of Speech Exceptions
• Obscenity – Miller v. CA (1973)• Legally obscene if:
• Avg person, using contemporary community standards, find it appeals to prurient interest
• Depicts/describes sex or excretory functions
• SLAPS test – not seriously literary, artistic, political, or scientific
Freedom of Speech Exceptions
• Time / Place / MannerTPM restrictions on speech are OK
if they don’t limit content of speech
Possible examples:Time—not in middle of nightPlace—not on private propertyManner—not with bullhorn
Freedom of Speech Exceptions
• Defamatory Speech• Slander – spoken / Libel – written• False statement of fact (not opinion)• Knowledge that statement is a lie
• Or if speaker/writer should know
• Reputation damage = actual damage• Not just embarrassed or mad
Freedom of Speech Exceptions
• School speech• Students have freedom of speech• But not same rights as out of school
• Need order in educational setting
• 1969 – students can silent protest• 1986 – schools can punish indecent
speech by students
Freedom of Speech Exceptions
• School speech• 1988 – schools can censor student
newspapers• 2006 – schools must allow students
to criticize authority figures
Freedom of Speech
• Symbolic speech• 1989 – Texas v. Johnson
• Burned flag on gov property, arrested
• Symbolic expression is protected
Freedom of the Press
• “Congress shall make no law…abridging the freedom of…the press”
• Press originally referred only to printed materials, now broader definition
• "every sort of publication which affords a vehicle of information and opinion."
Freedom of the Press
• CensorshipNY Times v. USA (1971)Prior restraint—gov ability to censor
before publication (right of 1st refusal)Only legal if imminent national security risk“Grave and irreparable harm”
Freedom of the Press
• Reporter privilege / Shield lawsAllow protection of reporters’
confidential sources in criminal casesMost states have shield laws, but national
gov doesn’t have one on the books
Freedom of the Press
• Defamation (libel)NY Times v. Sullivan (1964)Media protected against libel suits by
public officials unless actual maliceMedia knowledge that information is false or
reckless disregard of its veracity
Freedom of the Press
• Defamation (libel)Curtis Publishing v. Butts (1967)Libel suits by public figures a little
easier to winMedia must have shown reckless lack of
professional standards
Freedom of the Press
• SatireHustler v. Falwell (1987)Public figure parodies that wouldn’t
reasonably be believable are protected
Freedom of Assembly
• “Congress shall make no law…abridging the freedom…of the people peaceably to assemble”
• Freedom to assemble in groups
• Freedom to join an association
Freedom of Assembly
• Time/Place/Manner restrictionsExamples:
Permit (public property)Permission (private property)Peaceful
Freedom of Association
• Expressive associationGroups expressing beliefs/identity by
choosing who can be membersGroups can’t exclude for reasons
unrelated to their central expression
Freedom of Association
• Expressive associationBoy Scouts v. Dale (2000)Groups can exclude for reasons
central to their expression